In order to be subjected to a search, police need probable cause; otherwise, it is a violation of the Fourth Amendment. For years, law enforcement officers in Maryland have used the odor of marijuana as their probable cause to search someone.

The Maryland Court of Appeals issued another ruling recently that puts an end to this practice. Chief Judge Mary Ellen Barbera authored the unanimous ruling, which said in part:

In order to lawfully arrest someone for possession of marijuana, the law enforcement officer must have probable cause to believe the arrestee possesses a criminal amount of marijuana, i.e., ten grams or more. A law enforcement officer cannot determine by the odor of marijuana alone the quantity of marijuana, if any, someone possesses. Therefore, the mere odor of marijuana does not create probable cause to believe an arrestee possesses a criminal amount of that substance.

In short, because law enforcement cannot tell you if you possess more than 10 grams of marijuana – the amount needed to lead to a criminal conviction – based on smell, they cannot use odor as their probable cause.

In fact, police cannot search you if they see you smoking a joint, either, because one joint does not indicate you have a criminal amount of marijuana on you. In order to search you, they would need a search warrant – and they cannot use your joint as probable cause to obtain one.

The exception to the rule is your car

Police do have the authority to conduct a warrantless search of a vehicle if they have probable cause to believe the vehicle is carrying contraband or contains evidence of criminal wrongdoing:

[a] law enforcement officer has probable cause to search a vehicle where the law enforcement officer detects an odor of marijuana emanating from the vehicle, as marijuana in any amount remains contraband, notwithstanding the decriminalization of possession of less than ten grams of marijuana; and the odor of marijuana gives rise to probable cause to believe that the vehicle contains contraband or evidence of a crime. (Robinson v. State, 451 Md. 94 (2017))

If you are subject to a search based on the odor of marijuana, we can argue that your Fourth Amendment rights have been violated, and that your case should be thrown out.

If law enforcement has arrested you in part or whole because of a suspected or actual possession of marijuana, it is important to understand how the law applies in your case. At Carey Law Office, we attorneys are committed to fighting for your legal rights and freedom. We serve clients throughout Maryland from our offices in Bowie and Crofton. To arrange a consultation about your case, call us today at 301.464.2500 or use our contact form.